The Green Bag
Jones and Smith have had business differences. They meet on the street. Jones stops Smith and accuses him of dishonesty. Smith angrily strikes Jones. Jones grabs Smith in his arms and holds him fast to prevent further "unpermitted physical contact" from the energetic operation of Smith's fury. Friends ap pear on the scene and separate the ges ticulating, garrulous combatants. A truce is imposed by neutral persuasion and physical restraint. Exeunt omnes, Jones and Smith promising reciprocally future undesirable results. Thus far I have stated no legal phenomenon. No consequences brought about through the operation of govern mental agencies are included among the events narrated. I presume that Mr. Spencer would say that the pano rama consisted of "social phenomena" only, and certainly I should not object to the use of the epithet. I agree that no part of "the law" has been indicated. Let us proceed with the trivial history, however. Jones, in whose mind the memory of Smith's blow still rankles, appeals to Newsome, attorney and counselor at law, to verify his conviction that Smith's assault grossly violated the majesty of the law and the rights of Jones to personal security. After due inquiry and cogitation, Newsome in forms Jones that he is entitled to satis faction in damages in an action for assault and battery. Jones directs Newsome to commence such a suit. Consequently a summons is taken out and served on Smith in accordance with the proper procedure of the jurisdiction. The issuance of this summons initiates a string of governmental events con sequential to the assault. The sequence now becomes a legal phenomenon, though, of course, not yet one from which the lawyer would derive much professional information. From this
event on through the preliminary procedure, the trial, verdict, judgment, appeal, reversal, retrial, etc., etc., through execution of the judgment in favor of Jones and completion of the records, there continue sequences of consequen tial governmental occurrences which, with respect to their causes preceding them in these sequences and in other collaterally contributing sequences, and with respect to their subsequent effects, are phenomena of the sort that excite our professional interest.4 The lawyer's peculiar business is to predict accurately the content and probability of such future sequences as results of pa'st and proposed events and conduct presented to him in the "cases" or "business" which he handles, and to so manage and conduct these "cases" or "business" as to bring about consequences of a desired sort and pre vent those of an undesired sort. Ac curate knowledge concerning such se quences is the sort of knowledge which he seeks. The fictional theory of law which I criticise is that the decisive links in such sequences are brought about through the operation of a system of authoritative rules and principles and that the proper avenue to mastery of the law is to seek out, learn, and learn to apply these talismanic agents. If this were a true theory, the law as a field of study would differ radically from that of any other learned profession. I do not deny that much knowledge of the law has been generalized into adequate rules and principles, nor that a great deal of accurate secondhand knowledge of the law may be acquired or imparted through the use of such generalizations; but it should be axio1 The concrete governmental events in the se quences may result partly from the collaterally contributing consequential effects of precedent or legislation or custom, etc. See next page.